Bullying and Harassment in the Virtual Workplace20 Nov 2020 // Insights
In the wake of the bullying debate arising from the news regarding Priti Patel today, Helen Crossland & Fiona Mendel look at the wider considerations...
With allegations of bullying made against the Home Secretary Priti Patel in the midst of the world grappling with coronavirus and remote working, businesses need to be ever mindful as to how to handle bullying and harassment during this time. The high-profile nature that can surround bullying claims should be a prompt to all organisations to review their policies, procedures and practices around bullying and harassment. Here, we discuss some key considerations that businesses should be making, especially during the pandemic.
While often referenced together, in legal terms there is a distinction between ‘bullying’ and ‘harassment’. Whereas bullying has no specific definition in law, harassment does. Nonetheless, both are serious allegations which carry high risks for businesses.
Harassment is defined in the Equality Act 2010 as when a person engages in ‘unwanted conduct related to a relevant protected characteristic’ and that conduct has the effect of violating the victim’s dignity or ‘creating an intimidating, hostile, degrading, humiliating or offensive environment’. To count as harassment, the unwanted conduct must be related to at least one of the following protected characteristics: age, disability, gender reassignment, race, religion or belief, sex or sexual orientation.
The Equality Act goes on to state that when deciding if the conduct amounts to harassment, the following is taken into account:
- The perception of the alleged victim;
- The other circumstances of the case; and
- Whether it is reasonable for the conduct to have that effect.
Importantly, the legal test set out above does not include the intention of the alleged harasser. Whether the accused intended to violate the dignity of the victim, or create a hostile environment is immaterial in law. What matters is the perception of the person being harassed.
Bullying, on the other hand, does not have a specific legal definition, and, perhaps surprisingly, there is no legislation that specifically prohibits bullying in the workplace. This lack of clarity can be unhelpful, and certainly does not mean that organisations should treat allegations over bullying any less seriously.
Where there is an allegation that an employee is being bullied, the greatest risk to an employer is that the employee considers the workplace so hostile that they can no longer work there, to the extent that the employment contract between the parties has broken down irretrievably and they are entitled to resign and claim constructive dismissal.
Bullying is a broad term, but examples may include verbal abuse, belittling behaviour, ostracising the staff member, unreasonably denying promotions, criticising an employee’s work in front of colleagues and so on. As a result, the employee might decide that the employer’s conduct towards them is so poor that they have no option but to leave and bring a claim. It is important to note that an organisation could be liable for the actions of its employees accused of bullying based on how they treat others at work, including those in their teams or under their management. There is the added risk of a personal injury claim where psychiatric injury is claimed as a result of bullying behaviour.
The coronavirus pandemic and the sudden and new change for many to work from home presents its own unique challenges. The crisis has brought significant issues, not least owing to the impact on mental health and raised stress and anxiety levels. Home working may further exacerbate this due to frustrations over IT, inadequate facilities and poor/lack of communication between staff and their managers. All of these factors can make bullying and harassment accusations more likely and heighten the impact of other’s behaviour.
For instance, while the use of remote meetings by Zoom and Teams has become commonplace, the lack of visual cues and participants being less guarded can be a perfect storm. Already frayed tempers may spill over if the technology fails, and inappropriate or undermining comments might be made in front of others which cause embarrassment or upset to the recipient.
While teams are encouraged to keep in touch, ‘jokes’ or shared photographs or videos from social media intended to lighten the mood during the pandemic, can also cause offence, and amount to harassment if they contain content that might be deemed sexist, racist, ageist, homophobic or related to another characteristic. Increased tensions and negative feelings caused by lockdown and the pandemic may only serve to heighten an employee’s perception of the actions in hand.
While issues remain, many businesses have now got to grips with the shift from a physical office space to a virtual workforce and have had to do so very rapidly. In addition to the practical and technological challenges, employers are also having to turn their attention to proactively managing and responding to bullying and harassment issues, including cyberbullying, within this new virtual working landscape.
“Cyberbullying” can range from posting offensive comments on social media sites to micro-managing an employee or extensive monitoring of an employee when working from home or even excluding employees from emails or meetings. Issues may also arise due to the fact that correspondence over email at times can be tricky because it can be more difficult to gauge a person’s tone or messages can be misconstrued and employees can feel more isolated.
Remote working or otherwise, employers must be clear with employees what is acceptable and what is not and create an open culture where employees are not afraid to raise their concerns and recognise that complaints will be properly handled. This includes where the complainant might hold a significantly more junior role to the accused.
In the current climate, many employers are managing a lot from a HR perspective, including their approach to furloughing or even redundancies, keeping up with huge amounts of Government guidance and general remote working issues. Despite this, employers must still make it a priority to treat any allegation of bullying or harassment seriously and take steps to fully investigate the circumstances and take action where appropriate. They should be mindful that an allegation of bullying may amount to harassment where the unwanted conduct is related to a protected characteristic and could result in a more serious, costly, and reputation damaging claim.
Prevention is better than cure, and it is crucial that all organisations take proactive steps in relation to potential bullying and harassment, including virtually. This will mitigate the risk of issues arising further down the line, which inevitably takes up significant management time, leading to potential liability and, of course, cause distress for those impacted. Such steps may include reviewing policies on bullying and harassment, equality and diversity and remote working to ensure they are fit for purpose and up to date. Furthermore, businesses should provide training to their staff and managers on how to avoid such behaviour whether in the workplace or at home, and how to deal with it if it does arise. Policies must be observed and followed consistently in the instance of a complaint. An employer cannot ‘undo’ the harassment if a claim is brought, but there is a defence if it took all reasonable steps to protect its workforce.
Should you have any queries on the above or require any employment related advice, please contact Helen Crossland at firstname.lastname@example.org or on 020 7725 8034 or Fiona Mendel at email@example.com or on 020 7725 8033.
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